A client asked: ‘We are a South African couple that got married in Mauritius. Are we married in or out of community of property?
These are the legal principles:
• Where the husband in a marriage regards South Africa as his domicile (permanent place of residence) at the time of conclusion of the wedding, such marriage is one in community of property, in the absence of the execution of a valid antenuptial contract.
• In Frankel′s Estate and Another v The Master and Another (1950) ALL SA 347 A, the court held that the law of the place of the husband′s domicile prevails where a marriage is concluded in a territory outside of the husband’s domicile.
• So, if the husband lived permanently in South Africa when the couple got married in Mauritius, if they did not conclude a marriage contract before the wedding, they were married in community of property.
• Although the formal validity of a marriage is determined by the law of the place where the marriage is solemnised (in this case, Mauritius), this does not mean that Mauritian law governs the legal and proprietary consequences of such marriage.
• The principles provided for in the Frankel case do not apply to same-sex marriages governed by the Civil Union Act 17 of 2006. One hopes that the law will clarify the uncertainty of whose domicile will be the deciding factor where a civil union is concluded.
• In some countries (the United Kingdom, Zimbabwe, and Botswana, to name a few), the opposite applies. Parties will be married out of community of property, automatically, without having to conclude a prenuptial contract.
• In Holland v Holland 1973 (1) SA 897 T, the court held that a person′s domicile is a particular territorial jurisdiction area or country where he/she intends to settle or is settled indefinitely. The court in the Frankel case held that:”…the matrimonial regime is governed by the law of the husband′s domicile at the time of the marriage, and that it is not governed by the law of another domicile which he then intends to acquire immediately or within a reasonable time after his marriage.”
• The above principles were confirmed in the Domicile Act of 1992 and the case of Esterhuizen v Esterhuizen 1999 (1) SA 492 C.
• If you intend to have a destination wedding or if the husband is domiciled in a foreign country, you can and should enter into an antenuptial contract regulating the consequences of your marriage and register the contract in South Africa. This will avoid uncertainty regarding whether the marriage is one in or out of community of property.